Publication date: 02.07.2024
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General principles of sentencing in criminal law
Introduction
One of the key aspects of criminal law is the process of imposing punishment on persons found guilty of criminal offenses. This is an extremely important stage of the implementation of criminal responsibility, which is important both for the convicted person and for society as a whole. The effectiveness of achieving the goals of criminal punishment - punishment, correction of the convicted person and prevention of new crimes - depends on how well-balanced and fair the punishment will be.
The criminal legislation of the vast majority of countries in the world, including Ukraine, contains a list of general principles that the court should be guided by when imposing punishment. These principles determine the basic requirements for the process of individualization of punishment and serve as guidelines for ensuring its fairness and legality.
Legislative regulation of the general principles of sentencing
In Ukraine, the main principles of sentencing are enshrined in Art.65 of the Criminal Code of Ukraine (hereinafter - CCU). According to this article, when imposing punishment, the court must:
take into account the degree of gravity of the committed criminal offense, the identity of the culprit and the mitigating and aggravating circumstances of the punishment;
impose a milder punishment within the limits provided for by the sanction of the article (sanction of part of the article) of the Special Part of the Criminal Code, according to which a criminal offense is qualified than that provided for by this sanction, only in the presence of mitigating circumstances and on the condition that a less severe punishment corresponds to the degree of severity of the criminal offense, the person of the culprit and the circumstances of the case;
in the case of imposing a more severe punishment than that provided for by the corresponding sanction of the article (sanction of part of the article) of the Special Part of the Criminal Code, to motivate the decision.
These principles are quite comparable to the general principles of sentencing, enshrined in the criminal legislation of most European countries. Thus, similar provisions are contained in the criminal codes of Germany, France, Spain, Poland and other countries.
Taking into account the degree of severity of the criminal offense
The first general principle of sentencing - taking into account the degree of gravity of the committed criminal offense - is one of the key factors in the individualization of punishment. The degree of gravity of the crime determines the social danger of the act, and therefore the nature and size (limits) of the punishment.
The legislation establishes four categories of crimes depending on their severity: minor, moderate, serious, and particularly serious (Article 12 of the Criminal Code).The court, determining the severity of a specific crime, must take into account the following criteria:
form of guilt (intention or negligence);
type and amount of damage caused by the crime;
method of committing and other objective circumstances.
For example, premeditated murder combined with special cruelty is a more serious crime than simple premeditated murder, because it is accompanied by particularly heinous, torturous acts against the victim. Accordingly, the court should impose a more severe punishment for the first act.
Taking into account the identity of the culprit
The next general principle - taking into account the identity of the guilty party - requires the court to carefully study the personality of the criminal, his moral, psychological and other individual characteristics when imposing punishment. This is important to ensure fairness and effectiveness of punishment.
The main features that characterize the person of the culprit and must be taken into account by the court are:
age;
state of health (physical and mental);
level of education and specialty;
marital status, presence of dependents;
previous criminal record;
behavior before and after the commission of the crime;
motives and goals of the crime.
For example, when sentencing a minor who committed a crime for the first time due to carelessness, the court should impose a lighter sentence than for a person who has previously been convicted and committed a serious intentional crime. Taking into account the identity of the culprit makes it possible to individualize the punishment taking into account the specifics of a particular criminal.
Consideration of mitigating and aggravating circumstances
The third general principle of sentencing – consideration of mitigating and aggravating circumstances – is closely related to the previous one. It requires the court to conduct a comprehensive investigation of all the circumstances of the case that affect the degree of public danger of the crime and the identity of the perpetrator.
The list of mitigating circumstances is established in Art. 66 KKU.These include, in particular:
appearing with a confession, sincere remorse or active assistance in solving the crime;
committing a crime under the influence of strong mental excitement or due to a combination of difficult personal or family circumstances;
committing a crime by a minor;
commission of a crime by a pregnant woman.
Circumstances aggravating punishment are provided for in Art. 67 of the CCU. These include, in particular:
committing a crime against a minor, an elderly person or a person in a helpless state;
commission of a crime by a person who previously committed a crime
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